Pretrial motions and notices Flashcards
When should motions to dismiss be made?
At arraignment unless on fundamental grounds or permission of the court
When can a motion to dismiss be entertained at any time?
(1) D has been pardoned for the charged offense
(2) D has been placed in jeopardy
(3) D has been granted immunity
(4) there are no material disputed facts and undisputed facts don’t establish guilt (must be sworn to)
How is the M2D challenged?
State must file a traverse or demurrer. Traverse denies with specificity the material facts in the M2D. If State files traverse or lists additional facts not cited by the defense, court must deny M2D.
When must a motion to suppress be filed?
Must be made before trial unless grounds were unknown w/ due diligence, opportunity didn’t exist, or court allows it.
What are the grounds for a M2S?
(1) property illegally seized w/o a warrant
(2) warrant insufficient on its face
(3) property seized is not property described in the warrant
(4) No PC for believing the existence of the grounds that the warrant was based
(5) warrant illegally executed
What must a M2S include?
(1) particular evidence sought to be suppressed
(2) reason for the suppression
(3) general facts supporting the motion
What must be included in a motion to suppress a confession or admission?
Motion must identify w/ particularity:
(1) statement to be suppressed
(2) reasons for the suppression
(3) factual basis for the motion
What is a motion to perpetuate testimony?
Made if a witness resides outside of territorial jurisdiction OR may be unable to attend a trial or hearing
What is required of a motion to perpetuate testimony?
Must have an affidavit of at least one credible person.
Must have:
(1) grounds for the motion
(2) supporting facts
(3) testimony is material
(4) necessary to prevent a failure of justice
When must a change of venue be filed?
10 days before trial unless good cause is shown
What is the standard for a change of venue?
Must state change of venue is needed b/c moving party can’t have a fair and impartial trial where the case is pending
What must be included in a motion to change venue?
Must be in writing w/ affidavits of the moving party and at least 2 other people setting out the factual basis for the motion
What is required for a motion to disqualify a judge?
Must allege in writing and sworn that judge is:
(1) prejudiced;
(2) related within the 3rd degree to a D or lawyer in the case or to a lower court judge in the case;
(3) a material witness
What is a notice of alibi?
Upon written demand of the prosecutor, a D MUST file and serve a notice of intention to rely on an alibi defense 10 days before trial. But court has discretion to change limits.
What must be included in a notice of alibi?
Must contain specific info on where the D claims to have been and the names and addresses of witnesses that will establish the alibi
Prosecutor must provide names and addresses that will rebut alibi after receiving the notice
